What Are The Kill List Rules?

The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un–American. Surely, a modern version of a WANTED: DEAD OR ALIVE notice could be publicly circulated, with a listing of the particulars. Maybe the named individual would turn himself in rather than wait for the drones to find him. Or maybe he’d hire an attorney to present evidence he’s not actually an imminent threat to American citizens.

For centuries, civilized societies have understood that even wars must be fought according to rules, which have developed over time in response to changing realities. Rules are even more important in endless, murky wars such as the fight against Islamist terror groups. Currently, we’re letting whomever is in the Oval Office pick and choose from among the existing rules, applying and redefining them based on his own judgment and that of his advisers. We can do better.

A reader hits the nail on the head, in my opinion:

What struck me about the proposal of Marc Ambinder’s you linked to was how well it fit with the way the executive’s “prerogative power” has been conceived in the history of political thought, starting, at least, with Locke. This notion received particularly powerful articulation in Federalist 70:

“That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

Part of the reason the executive exists is to make decisions that require “dispatch,” especially in the realm of foreign affairs. Secrecy here does not mean a lack of transparency — its referring to the type of deliberations compatible with brisk, decisive national security choices. Congress, especially our pathetically dysfunctional one, couldn’t possible be counted on to meet, debate, and then decide with the urgency that emergencies or time-sensitive situations require. This was all the more true in 18th century, of course, when travel was so burdensome.

But if you go on to read the rest of Federalist 70, note the other feature of “unity” in the executive: it allows for accountability, especially post-hoc accountability. Because one person is president, there can be no passing of the blame as there might be in some manner of executive council (an option debated at the Constitutional convention). So a corollary to prerogative power the executive can deploy, the “dispatch” at his disposal, is that after the fact we know exactly who to praise or blame. It is a recognition that sometimes difficult, timely decisions need to be made, and there must be a mechanism to undertake those decisions — and that the executive is the only one in a position to make those. Structurally, it couldn’t really be otherwise.

The Framers, though, also seemed to invest that authority with the burden of post-hoc responsibility. The very unity that allows for “secrecy, energy, and dispatch” is the unity that allows us to render judgment on those activities in a very particular way. As Hamilton put it this very paper:

“[O]ne of the weightiest objections to a plurality in the executive…is that it tends to conceal faults, and destroy responsibility…It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.”

The Framers wanted us to know the “real author” of these difficult decisions. The virtue of Ambinder’s proposal is it allows for that. I think keeping in mind these distinctive features of the executive is particularly helpful as we consider this vexing issue. Transparency and accountability — making sure “faults” are not “concealed” — is the heart of the matter. Give the President his power to make these wrenching decisions. But let us not shrink from exercising judgment, informed by all the relevant information, about those decisions.

Which means some kind of post-hoc judicial process of some sort. And I can see that, when it comes to those moments when the executive branch needs to act expeditiously (e.g. an enemy target has just been spotted and could easily be lost unless killed immediately), this is the best option we have. But I don’t see why a court cannot be involved in vetting the selection of targets beforehand, and weighing the government’s evidence against them.